Cowing v. Kenmore New Covenant Tabernacle of Tonawanda

Appellate Division of the Supreme Court of New York

Cowing v. Kenmore New Covenant Tabernacle of Tonawanda

19 A.D.3d 1094, 796 N.Y.S.2d 279, 2005 N.Y. App. Div. LEXIS 6270

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 10, 2005

StatusPublished

This text of 19 A.D.3d 1094 (Cowing v. Kenmore New Covenant Tabernacle of Tonawanda) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Cowing v. Kenmore New Covenant Tabernacle of Tonawanda, 19 A.D.3d 1094, 796 N.Y.S.2d 279, 2005 N.Y. App. Div. LEXIS 6270 (N.Y. Ct. App. 2005).

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Opinion

Appeal from an order of the Supreme Court, Erie County (Joseph R. Glownia, J.), entered October 5, 2004. The order, among other things, denied that part of the motion of defendant Paul Reid seeking dismissal of the action against him for failure to serve a timely complaint.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Supreme Court properly denied the motion of Paul Reid (defendant) seeking, inter alia, dismissal of the action against him based on plaintiffs’ failure to serve a timely complaint in response to his demand therefor pursuant to CPLR 3012 (b). “To avoid dismissal for failure to timely serve a complaint after a demand for the complaint has been made pursuant to CPLR 3012 (b), a plaintiff must demonstrate both a reasonable excuse for the delay in serving the complaint and a meritorious cause of action” (Chmielnik v Rosenberg, 269 AD2d 555, 555 [2000]). Here, plaintiffs established a reasonable excuse for the delay and a meritorious cause of action against defendant. Also contrary to defendant’s contention, the court did not abuse its discretion in imposing a constructive trust on the property during the pendency of the litigation. A constructive trust may be imposed “ ‘whenever necessary to satisfy the demands of justice’ ” (Simonds v Simonds, 45 NY2d 233, 241 [1978]). Present—Pigott, Jr., PJ., Green, Gorski, Martoche and Smith, JJ.

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Appeal from an order of the Supreme Court, Erie County (Joseph R. Glownia, J.), entered October 5, 2004. The order, among other things, denied that part of the motion of defendant Paul Reid seeking dismissal of the action against him for failure to serve a timely complaint.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Supreme Court properly denied the motion of Paul Reid (defendant) seeking, inter alia, dismissal of the action against him based on plaintiffs’ failure to serve a timely complaint in response to his demand therefor pursuant to CPLR 3012 (b). “To avoid dismissal for failure to timely serve a complaint after a demand for the complaint has been made pursuant to CPLR 3012 (b), a plaintiff must demonstrate both a reasonable excuse for the delay in serving the complaint and a meritorious cause of action” (Chmielnik v Rosenberg, 269 AD2d 555, 555 [2000]). Here, plaintiffs established a reasonable excuse for the delay and a meritorious cause of action against defendant. Also contrary to defendant’s contention, the court did not abuse its discretion in imposing a constructive trust on the property during the pendency of the litigation. A constructive trust may be imposed “ ‘whenever necessary to satisfy the demands of justice’ ” (Simonds v Simonds, 45 NY2d 233, 241 [1978]). Present—Pigott, Jr., PJ., Green, Gorski, Martoche and Smith, JJ.

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Bluebook (online)

19 A.D.3d 1094, 796 N.Y.S.2d 279, 2005 N.Y. App. Div. LEXIS 6270, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cowing-v-kenmore-new-covenant-tabernacle-of-tonawanda-nyappdiv-2005.

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